When it comes to workplace investigations, legal professional privilege is a useful tool that employers can use to get to the bottom of issues without fear that the ‘laundry’ will be aired in public, or used against them in a tribunal or court. Unfortunately, the protection that privilege has to offer is sometimes inadvertently jeopardised by the way in which an employer deals with an investigation report.
In this In Brief, we look at recent cases where employees have demanded access to privileged investigation reports; and discuss some practical tips to help employers keep their ‘business’ private.
LEGAL PROFESSIONAL PRIVILEGE IN A NUTSHELL
Communications between an employer and its lawyers, made for the dominant purpose of the provision of legal advice or in anticipation of legal proceedings, are ‘privileged’.
Practically, the benefit of privilege is that, as long as it is maintained, the employer can refuse to disclose the communications, for example in response to a notice to produce an investigation report.
PRIVILEGE, ONCE LOST, IS LOST FOREVER
Establishing privilege does not guarantee that the document will not be required to be produced in the future.
Privilege can be voluntarily waived by consent (e.g. by providing the employee with the relevant documents), or inadvertently lost by the employer doing something ‘inconsistent with maintaining the secrecy of the communication’. The following three cases illustrate this point.
THE THREE CASES – DIFFERENT RESULTS
Hand it Over
In July 2014, the Federal Circuit Court in Bartolo v Doutta Galla Aged Services Ltd  FCCA 1517 (Bartolo) ordered a defendant employer to hand over a copy of its confidential investigation report. 
In this case, the Court determined that Doutta Galla had waived privilege over the report by relying on it as part of its defence to the employee’s adverse action claim.
The Court held that:
- The CEO had relied on the investigation report in making his decision to terminate Mr Bartolo’s employment.
- The CEO’s state of mind was in issue.
- In defending the claim, Doutta Galla had relied on the report.
- In accordance with the general principles of procedural fairness, reliance on a report that you refuse to produce is inconsistent with maintaining the secrecy of the report.
- Accordingly, the investigation report was required to be provided to the employee.
You Can't Touch This
Two more recent Fair Work Commission proceedings (Bowker and Ors v DP World and Ors  FWC 7887 (Bowker) and Kirkham v DP World Melbourne Limited  FWC 605 (Kirkham) concerned unsuccessful attempts to gain access to confidential investigation reports.
Bowker and Kirkham involved unfair dismissal and bullying proceedings arising from various bullying complaints made to DP World.
In both cases, DP World’s lawyers engaged a third party to conduct an investigation and produce a report.
The employees in each case were aware that the report would be subject to legal privilege.
In the Bowker proceedings (the bullying claim), DP World attached a summary document (outlining the findings of the investigation report) to one of the witness statements filed in response to the claim, as evidence of the process which had been undertaken in response to the complaints.
In the Kirkham proceedings (the unfair dismissal claim), DP World gave Mr Kirkham the opportunity to respond to allegations extracted from the investigation report.
In both cases, the employees sought access to the investigation reports, which was refused. DP World refused access on the basis that the reports were subject to legal privilege, and that no action had been taken that was inconsistent with maintaining the secrecy of the contents of the reports.
In both cases, the FWC found that the relevant investigation report was protected by privilege, because it had been created to assist DP World’s lawyers in the provision of legal advice to DP World.
The issue then arose, in each case, whether DP World had waived privilege. The employees alleged that by providing the summary (in Bowker) and putting the allegations to the employee (in Kirkham), DP World had waived privilege over the investigation reports.
In Bowker, the FWC held that privilege was not waived because the findings of the report were not related to the proceedings or the employer’s defence, and the creation of the summary document did not amount to a waiver. This material had not been included by DP World’s lawyers ‘for the purposes of obtaining any particular forensic advantage’. Evidence of the process undertaken in response to the employees’ complaints did not amount to reliance by the employer on the contents of the investigation report for its defence.
In Kirkham, the FWC considered that privilege was not waived over the report because the purpose of the disclosure was to provide Mr Kirkham with the opportunity to respond to the allegations, which was not inconsistent with the maintenance of confidentiality/privilege. According to the FWC: ‘the purpose of the disclosure was to focus the disciplinary discussion on those allegations that were found by [the investigator] to have been sustained.’ Again, evidence of an opportunity to respond to allegations did not amount to reliance by the employer on the contents of the report for its defence.
PRIVILEGE – HERE TODAY GONE TOMORROW?
These cases demonstrate that maintaining privilege over an investigation report can sometimes be far from straightforward.
In particular, employers risk losing privilege and risk having to disclose investigation reports, if they rely on the contents of a report as evidence against the employee in legal proceedings.
As demonstrated by the diagram below, privilege can be lost throughout HR processes:
- At the beginning - by not obtaining legal advice.
- During the disciplinary process (i.e. at the time that the allegations are put to the employee or at the point of termination/disciplinary action).
- By relying on or referring to the investigation report. - and
- At the very end – by relying on the report as part of an employer’s defence.
Click here to view image.
CORRS’ PRACTICAL TIPS
- Establish and Maintain the Dominant Purpose
- Ensure that the dominant purpose of the investigation report/communications is for providing legal advice or in anticipation of litigation (consider issues such as engaging external counsel).
- Mitigate the risk of a dual purpose being alleged – check your policies and ensure all communications are clear.
- Keep it Confidential
- Limit the distribution of privileged communications.
- Ensure that staff with access to the investigation report/communications treat the information confidentially and do not act in a manner inconsistent with the maintenance of privilege and/or waive privilege.
- Rely on the FACTS, not the report